Tapu Misa: Water rights - a case of justice

The Waitangi Tribunal wrote an interim report on Maori water rights. Photo / Mark Mitchell

It's a pity that so few people will take the time to read the Waitangi Tribunal's interim report on Maori water rights. Although the issues it wrestles with are complex, the report is readable, measured, and fair.

But at 275 pages, it takes more effort to digest than a tweet from shock jock Michael Laws, which damns it as "another racist judgment by the Waitangi Tribunal: because you're Maori you deserve compensation for a resource every New Zealander owns. Dreadful."

I doubt Laws bothered to read the report, but that won't stop the talkback tribe joining the chorus of ignorance.

It's no wonder the tribunal goes to such lengths to set the record straight, before it launches into the thorny business of who owns what, and why, and what that should mean for a country which purports to respect the rule of law.

Its findings aren't good news for the Government, but will it derail the Government's partial sell-off of state assets?

Most New Zealanders won't mourn that outcome, but that isn't the point of the claims. As the tribunal notes, the claimants aren't implacably opposed to the partial privatisation programme; they're simply seeking to safeguard rights that they have long asserted are theirs, and which are now in danger of being irretrievably lost as a result of the Government's partial privatisation programme.

Despite "public perception that the current claim is opportunistic", the tribunal says, these claims aren't new or novel.

Certainly, the immediate trigger was the Crown "attempting to privatise water and transfer its benefits to private shareholders, while ignoring the prior Maori right to control - and to benefit from - the resource".

But, in fact, "Maori claims to proprietary rights in water bodies, and to both authority over those waters and the right to profit from their use, have been before the tribunal for some 30 years, and have existed for a long time before that".

Almost from the signing of the Treaty of Waitangi, in fact.

The Government's bottom line is that "no one can own water", but it doesn't dispute that Maori have legitimate rights and interests in water.

What is in question is the nature and extent of those rights, and how they might be expressed in today's world.

The Crown argues that Maori rights aren't in the nature of property rights, but even if they were, it insists that the proposed sell-off won't prevent the Government from making good on those rights at some later date.

The claimants, led by the now-vindicated Maori Council, are understandably doubtful.

If the Government goes ahead with its sell-off, "without first protecting the Crown's capacity to recognise Maori proprietary rights in water, [that] would put an appropriate settlement asset forever beyond their reach".

"It would also create a class of private investors who had purchased shares in good faith on the basis of the zero-charge for water, and whose likely opposition would inhibit the Crown's ability to recognise Maori water rights later by way of a royalty or some such charge."

This seems like simple political reality. And despite the Government's assurances, the tribunal agrees with them. The recognition of "the just rights of Maori in their water bodies can no longer be delayed", it says.

The Crown has argued that Maori rights should be conceived of only as kaitiakitanga or stewardship. "Ownership", it said, doesn't have a Maori equivalent.

That's true to a point, and convenient. But past decisions of the Native Land Court and the Waitangi Tribunal have already recognised that Maori have proprietary interests in their water resources.

And while Western-style legal ownership may not be a comfortable fit with Maori customary authority, "ownership" is the closest English cultural equivalent.

As some claimants told the tribunal, the obligation to take care of precious resources isn't much use without the authority that "ownership" and proprietary rights bring.

"Maori have little choice but to claim English-style property rights ... as the only realistic way to protect their customary rights and relationships with their taonga," the tribunal writes.

This doesn't need to be a scary proposition. There are precedents. For example, a 1929 decision of the Native Land Court and later court order which gave Ngapuhi ownership of Lake Omapere, its bed and "the water thereon", including the sole right to sell water or to lease it for hydroelectricity.

As the tribunal observed in its 1999 Whanganui River report, exclusive ownership of a river (and in reality of its water) was possible even in England. This was because English law recognised that the beds of rivers can be owned privately, and that riparian owners can prevent access to the running water of their privately owned river.

The tribunal in that case was at pains to point out that recognising Maori rights was not "a race-based privilege": "it was nothing more or less than the protection of private property, a cornerstone of English law".

"It is neither a privilege nor racist that a people should be able to retain what they have possessed. Property rights go to the heart of any just legal system."

It's ironic that opponents of the water claim should characterise Maori claims as racist.

Today's tribunal notes that, "There has been much criticism in the public arena of Maori making this claim, but what we say is that property rights and their protection go to the heart of a just legal system."

The tribunal seems to feel obliged to emphasise that "it was very evident that the commercial or profit motive was not the primary motive for bringing the claim", but this begs the question: Are Maori property rights only valid as long as Maori themselves don't profit from them?